EXHIBIT 3.28
FIRST AMENDMENT
TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
BUILDERS FIRSTSOURCE - INTELLECTUAL PROPERTY, L.P.
This First Amendment ("Amendment") to the Limited Partnership Agreement
of Builders FirstSource - Intellectual Property, L.P., a Texas limited
partnership (the "Partnership"), is made and entered into effective as of the
10th day of February, 2004 (the "Effective Date"), by and between BFS - IP, LLC,
a Delaware limited liability company ("BFS - IP"), as the general partner, and
Builders FirstSource - Texas Group, L.P., a Texas limited partnership ("Texas
Group"), as the limited partner.
RECITALS
A. The Partnership was formed pursuant to the Limited Partnership
Agreement of the Partnership dated as of December 8, 2000 (the "Agreement"). A
Statement of Change of Address of Registered Agent was filed in the Office of
the Secretary of State of Texas on April 9, 2002. All capitalized terms used
herein and not otherwise defined have the meaning given such terms in the
Agreement.
B. The undersigned desire to amend the Agreement as provided herein.
Now, therefore, for and in consideration of the mutual promises
contained herein, and for other good and valuable consideration, the adequacy,
receipt, and sufficiency of which are hereby acknowledged, the undersigned
hereby agree as follows:
1. The following definitions shall be added to Section 1.08 Certain Definitions:
"Credit Agreement" shall mean that certain Credit Agreement, dated as
of February [25], 2004 among Builders FirstSource, Inc., as borrower (the
"Borrower"), UBS AG, Stamford Branch, as administrative agent for the Lenders,
First Lien Collateral Agent for the First Lien Secured Parties and Second Lien
Collateral Agent for the Second Lien Secured Parties (in such capacity,
"Collateral Agent"), the financial institutions party thereto (the "Lenders"),
JLL Building Products, LLC, and the other Guarantors party thereto (the
"Guarantors"), and certain other financial institutions (including all annexes,
exhibits and schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified).
"Security Agreement" shall mean that certain Pledge and Security
Agreement, dated as of February [25], 2004, between Builders FirstSource, Inc.,
a Delaware corporation, JLL Building Products, LLC, the other Guarantors party
thereto and the Collateral Agent (as amended, restated and modified from time to
time).
2. Section 5.01 of the Agreement shall be amended to read in its entirety as
follows:
Section 5.01. Prohibited and Permitted Transfers. Except as
specifically provided in this Article V, no Limited Partner may sell, transfer,
assign, mortgage, hypothecate, or otherwise encumber or permit or suffer any
encumbrance of all or any part of his or its interest in the Partnership without
the approval of the General Partner and the General Partner may not sell,
transfer, assign, mortgage, hypothecate, or otherwise encumber or permit or
suffer any encumbrance of all or any part of its interest in the Partnership
provided, that (i) any Partner may sell, assign, transfer, mortgage, charge or
otherwise encumber its Partnership Interests to any person in connection with
the Security Agreement and to any person acquiring such Partnership Interests in
connection with the enforcement of any remedy under the Security Agreement by
any agent or lender thereunder or otherwise, (ii) such person shall
automatically be substituted into and/or admitted to, as applicable, the
Partnership (including as General Partner, if applicable) and (iii) no written
consent from any other Partner shall be required with respect to any such sale,
assignment, transfer, mortgage, charge or other encumbrance, as applicable. Any
attempt so to transfer or encumber any such interest shall be null and void, ab
initio. The Partners will be excused from accepting the performance of and
rendering performance to any person other than the Limited Partner hereunder
(including any trustee or assignee of or for such Partner) as to whom such
requisite approval of the General Partner has not been rendered.
3. Section 5.03 of the Agreement shall be amended to read in its entirety as
follows:
Section 5.03. Substituted Partner. An assignee or transferee (other
than an existing Partner) of the interest of a Partner may be admitted as a
substitute partner ("Substituted Partner") only with the approval of the General
Partner provided that no approval of any Partner, including without limitation
the General Partner, shall be required to admit a Substitute Partner (including
as General Partner, if applicable) in the case of any admission or substitution
of any Substituted Partner following (i) the sale, assignment, transfer,
mortgage, charge or other encumbrance in connection with the Security Agreement
or (ii) the enforcement of any remedy under the Security Agreement by any lender
thereunder and, provided further, that upon any such actual sale, assignment,
transfer, mortgage, charge or other encumbrance of any Partnership Interest
under the Security Agreement or foreclosure of any Partnership Interest in
connection with the enforcement of any remedy under the Security Agreement, the
Substituted Partner shall be a Partner immediately thereafter. Unless the
assignee is already a General Partner, any assignee of a Partnership interest to
whose admission such consent is given shall become and shall have only the
rights and duties of a Limited Partner and the assigned Partnership interest
shall thereafter be a Limited Partner's interest. Upon the receipt by the
General Partner of an appropriate supplement to this Agreement pursuant to which
such Substituted Partner agrees to be bound by all the terms and provisions of
this Agreement, the General Partner shall reflect the admission of a Substituted
Partner and the withdrawal of the transferring Partner, if appropriate, by
preparing a supplemental exhibit, dated as of the date of such admission and
withdrawal, and by filing it with the records of the Partnership. Any
Substituted Partner shall, if required by the General Partner, prior to such
admission, also execute any other documents requested by the General Partner,
including, without limitation, an irrevocable power of attorney in form
satisfactory to the General Partner appointing the General Partner as such
person's attorney-in-fact with full power to execute, swear to, acknowledge, and
file all certificates and other instruments necessary to carry out the
provisions of this Agreement, including, without limitation, such undertakings
as the General Partner may require for the payment of all fees and
2
costs necessary to effect any such transfer and admission. The transferor and
transferee of the transferred interest shall be responsible for the costs
associated with the transfer of the interest, including, without limitation,
reasonable attorney's fees. Upon admission, such Substituted Partner shall be
subject to all provisions of this Agreement in the place and stead of his
assignor as if the Substituted Partner originally was a party to this Agreement.
4. Section 6.02 of the Agreement shall be amended to read in its entirety as
follows:
Section 6.02. Dissolution of the Partnership. Subject to the terms of
the Credit Agreement, the Partnership shall be dissolved upon the occurrence of
any of the following:
(a) The withdrawal, as defined in the Act, of a General Partner,
unless:
(i) the remaining General Partner, if any, elects in writing
within ninety (90) days after such event to continue the business of
the Partnership as the General Partner, or
(ii) there is no remaining General Partner, then within ninety
(90) days after such event, all of the Limited Partners agree to
continue the business of the Partnership and appoint in writing a
successor General Partner, as of the date of the withdrawal of the
General Partner, and such successor General Partner agrees in writing
to accept such appointment; or
(b) The sale or other disposition, not including an exchange, of
substantially all of the assets of the Partnership (except under circumstances
where all or a portion of the purchase price is payable after the closing of the
sale or other disposition); or
(c) December 31, 2050, unless extended by the consent of all Partners;
or
(d) Subject to any obligations of the Partnership, when approved by the
General Partner.
Nothing contained in this Section 6.02 is intended to grant to any Partner the
right to dissolve the Partnership at will (by retirement, resignation,
withdrawal, or otherwise) or to exonerate any Partner from liability to the
Partnership and the remaining Partners if he or it dissolves the Partnership at
will.
5. Section 6.05 of the Agreement shall be amended to read in its entirety as
follows:
Section 6.05. Termination and Liquidation of the Partnership.
(a) Subject to the restrictions set forth in the Credit Agreement, upon
dissolution of the Partnership unless continued pursuant to Section 6.03, the
Partnership shall be terminated as rapidly as business circumstances will
permit. At the direction of the General Partner, or a Partner approved by the
Limited Partners if the dissolution of the Partnership is caused by the
withdrawal of the General Partner (the General Partner or the other Partner, as
the case may be,
3
being herein called the "Terminating Partner"), a full accounting of the assets
and liabilities of the Partnership shall be taken and a statement of the
Partnership Assets and a statement of each Partner's Capital Account shall be
furnished to all Partners as soon as is reasonably practicable. The Terminating
Partner shall take such action as is necessary so that the Partnership's
business shall be terminated, its liabilities discharged, and its assets
distributed as hereinafter described. The Terminating Partner may, in his or its
sole discretion, either sell all or a part of the Partnership Assets, distribute
all or a part of the Partnership Assets in kind to the Partners, or sell part
and distribute part of the Partnership Assets in kind to the Partners (i.e., a
combination of the two approaches); provided, however, that the Terminating
Partner shall ascertain the fair market value of the Partnership Assets by
appraisal or other reasonable means of all Partnership Assets remaining unsold
and each Partner's Capital Account shall be charged or credited, as the case may
be, as if such Partnership Assets had been sold at their fair market value and
the income, gains, losses, deductions, and credits realized thereby had been
allocated to the Partners in accordance with Article IV hereof. A reasonable
period of time shall be allowed for the orderly termination of the Partnership
to minimize the normal losses of a liquidation process.
(b) After the payment of all expenses of liquidation and of all debts
and liabilities of the Partnership in such order or priority as provided by law
(including any debts or liabilities to Partners, who shall be treated as secured
or unsecured creditors, as may be the case, to the extent permitted by law, for
sums loaned to the Partnership, if any, as distinguished from capital
contributions) and after all resulting items of Partnership income, gain,
credit, loss, or deduction are credited or debited to the Capital Accounts of
the Partners in accordance with Articles III and IV hereof, all remaining
Partnership Assets shall then be distributed among the Partners in accordance
with their relative positive Capital Account balances. Upon termination, a
Partner may not demand and receive cash in return for such Partner's capital
contributions and no Partner shall have any obligation to restore any deficit
that may then exist in that Partner's Capital Account. Distribution on
termination may be made by the distribution to each Partner of an undivided
interest in any asset of the Partnership that has not been sold at the time of
termination of the Partnership.
6. Except as amended hereby, the Agreement shall remain in full force and
effect, and each person executing this Amendment hereby acknowledges the same.
7. This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original for all purposes and all of which when taken together
shall constitute a single counterpart instrument. All of the counterpart pages
shall be read as though one and shall have the same force and effect as if all
of the parties had executed a single signature page.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
This Amendment is executed to be effective as of the Effective Date.
GENERAL PARTNER
BFS IP, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx,
Senior Vice President
LIMITED PARTNER
Builders FirstSource - Texas Group, L.P.,
a Texas limited partnership
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx,
Senior Vice President
5
LIMITED PARTNERSHIP AGREEMENT
OF
BUILDERS FIRSTSOURCE - INTELLECTUAL PROPERTY, L.P.
This Limited Partnership Agreement ("Agreement") of Builders
FirstSource - Intellectual Property, L.P. is made and entered into effective as
of the 11th day of December, 2000 (the "Effective Date"), by and between BFS IP,
LLC, a Delaware limited liability company ("BFS IP"), as the general partner,
and Builders FirstSource - Texas Group, L.P., a Texas limited partnership
("Texas Group"), as the limited partner. The general partner and the limited
partner are sometimes referred to herein individually as a "Partner" and
collectively as the "Partners".
WITNESSETH:
For and in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the adequacy, receipt, and
sufficiency of which are hereby acknowledged the Partners hereby agree as
follows:
ARTICLE I
ORGANIZATION AND PURPOSE
Section 1.01 Formation of Limited Partnership. The Partners hereby agree
to become partners and to form a limited partnership. (the "Partnership")
pursuant to Article 6132a-1 Tex. Rev. Civ. Stat. Xxx., known as the Texas
Revised Limited Partnership Act (the "Act"), which shall be governed by, and
operated pursuant to, the terms and provisions of this Agreement. BFS 1P shall
be the general partner of the Partnership and is hereinafter sometimes referred
to as the "General Partner". Texas Group shall be the limited partner and is
hereinafter sometimes referred to individually as the "Limited Partner".
Section 1.02 Name. The name of the Partnership shall be Builders
FirstSource - Intellectual Property, L.P. All business and affairs of the
Partnership shall be conducted solely under, and all Partnership Assets (as that
term is defined in Section 1.04) shall be held solely in, such name unless
otherwise determined by the General Partner.
Section 1.03 Effective Date and Term. The Partnership shall be in effect
for a term beginning on the Effective Date and shall continue under this
Agreement (as amended from time to time) until dissolved upon the occurrence of
an event that causes the dissolution of the Partnership in accordance with the
provisions of this Agreement (unless continued as provided herein), and
thereafter to the extent provided by applicable law, until wound up and
terminated as provided herein.
Section 1.04 Purposes and Scope of Business. The business and purposes of
the Partnership shall be to engage in any and all lawful business activities in
which limited partnerships
formed in the State of Texas may engage or participate under the Act. Subject to
the terms and conditions of this Agreement, the Partnership shall have the power
and authority to do all such other acts and things as may be necessary,
desirable, expedient, convenient for, or incidental to, the furtherance and
accomplishment of the foregoing objectives and purposes and for the protection
and benefit of the Partnership. The assets of the Partnership, whether now or
hereafter owned, are sometimes referred to as the "Partnership Assets".
Section 1.05 Documents. The General Partner, or anyone designated by the
General Partner, is hereby authorized to execute a certificate of limited
partnership of the Partnership ("Certificate of Limited Partnership") in
accordance with the Act and cause the same to be filed in the office of the
Secretary of State of the State of Texas in accordance with the provisions of
the Act. The Partnership shall promptly execute and duly file with the proper
offices in each state in which the Partnership may conduct the activities
hereinafter authorized, one or more certificates as required by the laws of each
such state in order that the Partnership may lawfully conduct the business,
purposes, and activities herein authorized in each such state, and the
Partnership shall take any other action or measures necessary in such state or
states for the Partnership to conduct such activities.
Section 1.06 Principal Place of Business. The principal place of business
of the Partnership shall be 0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxx, Xxxxxx, Xxxxx
00000 or at such other place or places as may be approved by the General
Partner. The General Partner shall be responsible for maintaining at the
Partnership's principal place of business those records required by the Act to
be maintained there.
Section 1.07 Registered Agent and Office. The Registered Agent (as defined
in the Act) for the Partnership shall be Xxxxxx X. XxXxxxxxx. The Registered
Office (as defined in the Act) of the Partnership shall be 0000 Xxxx Xxxxxx,
Xxxxx 0000 Xxxx, Xxxxxx, Xxxxx 00000.
Section 1.08 Certain Definitions.
(a) "Accounting Date" shall mean the close of business on (i) the
date any Additional Capital Contributions are made by the Partners in a manner
other than in accordance with their then existing Percentage Interests and (ii)
the last day of each fiscal year of the Partnership.
(b) "Accounting Period" shall mean the period at the opening of
business on the day following any Accounting Date (or the Effective Date of this
Agreement, in the case of the first Accounting Period) and continuing until the
close of business on the next succeeding Accounting Date.
(c) "Certificate" shall mean a certificate issued by the
Partnership to the Partners evidencing ownership of one or more Partnership
Units.
(d) "Partnership Interest" shall mean the ownership interest of a
Partner in the
Partnership, represented by the Partnership Units held by such Partner.
(e) "Partnership Unit" shall mean a unit of ownership,
representing the ownership of the economic rights in the Partnership.
(f) "Percentage Interest" shall mean, with respect to a partner,
the fraction, expressed as a percentage, the numerator of which is equal to the
Partnership Units held by such Partner and the denominator of which is equal to
the aggregate Partnership Units held by all Partners.
ARTICLE II
OPERATIONS
Section 2.01 Management of Partnership. The right to manage, control, and
conduct the business and affairs of the Partnership shall be vested solely in
the General Partner. The Limited Partners shall not take part in the management
of the affairs of the Partnership and under no circumstances may any Limited
Partner control the Partnership business or sign for or bind the Partnership.
The General Partner may, from time to time, appoint and delegate to one or more
"Officers" of the Partnership (as hereinafter defined) or other persons such
authority and duties of the General Partner as the General Partner deems
advisable. Any delegation of authority pursuant to this Section 2.01 may be
revoked at any time and with or without cause by the General Partner. Without
limiting the generality of the foregoing, and notwithstanding anything to the
contrary contained in this Agreement, the General Partner shall have the
exclusive authority to act for and on behalf of the Partnership, and no third
party shall ever be required to inquire into the authority of the General
Partner to take such action on behalf of the Partnership.
Section 2.02 Officers.
(a) The General Partner may, from time to time, appoint and
designate, as it deems advisable, one or more persons who are individuals to be
officers of the Partnership ("Officers" or an "Officer"). Unless the General
Partner decides otherwise, any Officer so designated shall have such authority
and perform such duties as the General Partner may delegate such Officer and
that are normally associated with that office in the context of a Texas
corporation as provided under the Texas Business Corporation Act, subject to any
specific delegation of authority and duties made to such Officer by the General
Partner pursuant to this Section 2.02. The Officers will include a President
("President"), Secretary ("Secretary"), one or more Vice Presidents ("Vice
President"), and any other Officers as the General Partner may appoint
including, but not limited to, a Treasurer ("Treasurer"), and one or more
assistant Secretaries or Treasurers ("Assistant Secretary" or "Assistant
Treasurer").
(b) Each Officer shall hold office for the term designated and
until his successor shall be duly designated and shall qualify, or until his
death, resignation, or removal as provided in this Agreement. Any person may
hold any number of offices.
(c) No Officer need be a Partner, Texas resident, or United States
citizen. Designation of a person as an Officer shall not of itself create any
contract rights.
(d) Officers will have the authority and perform duties in the
management of the Partnership as provided in this Section 2.02 of the Agreement.
(e) The Chief Executive Officer will have those powers and duties
delegated by the General Partner.
(f) Subject to the direction of the General Partner, the President
will have general management and control of the business and property of the
Partnership in its ordinary course of business with all such powers in respect
to general management and control as are reasonably incident to such
responsibilities.
(g) The Vice President will have those powers and duties delegated
by the General Partner or the President. If more than one, the Vice Presidents,
in the order designated by the General Partner, or if in the absence of such
designation, as determined by the length of term each has held the office of the
Vice President, will exercise the powers of the President during the President's
absence or incapacitation.
(h) The Treasurer will have the care and custody of all of the
Partnership funds and shall deposit them in such banks or other depositories as
the General Partner directs and approves. The Treasurer shall keep a complete
and accurate account of all monies received and paid on account of the
Partnership and must render a statement of the Partnership accounts whenever the
General Partner so requires. Except as otherwise provided by the General
Partner, the Treasurer shall perform all other necessary acts and duties in
connection with the administration of the Partnership's financial affairs and
generally perform all the duties ordinarily appertaining to the office of the
Treasurer. In the absence of the Treasurer, the person designated by the General
Partner, if any, will perform the Treasurer's duties.
(i) Each assistant Treasurer will have those powers and duties
delegated by the General Partner or President. If more than one, the Assistant
Treasurers, in the order designated by the General Partner or, if in the absence
of any designation, as determined by the length of term that each has held the
office of Assistant Treasurer, will exercise the powers of the Treasurer during
the Treasurer's absence or incapacitation.
(j) Except as otherwise provided in this Agreement, the Secretary
shall keep the minutes of all meetings of the General Partner or consents in
lieu of such meetings in the Partnership's minute books, and shall cause notice
of the meetings to be given when requested by any person authorized to call a
meeting. The Secretary may sign with the President in the name of the
Partnership, all contracts of the Partnership. The Secretary shall, in general,
perform such other duties incident to the office of the Secretary, or as
delegated by the General Partner or the President.
(k) Each assistant Secretary will have those powers and duties
delegated by the General Partner or the President. If more than one, the
Assistant Secretaries, in the order designated by the General Partner or, if in
the absence of such designation, as determined by the length of term each has
held the office of the Assistant Secretary, will exercise the powers of the
Secretary during
the Secretary's absence or incapacitation.
(l) Any Officer appointed by the General Partner may be removed as
such, with or without cause and at any time, by the General Partner whenever in
its judgment the best interests of the Partnership will be served thereby;
provided, however, that such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Any Officer of the Partnership may
resign as such at any time upon written notice to the Partnership. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time is specified therein, at the time of its receipt by the
General Partner. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly provided in the resignation.
(m) The General Partner may fill any vacancy occurring at any time
and in any office of the Partnership.
(n) The compensation, if any, of the Officers shall be fixed from
time to time by the General Partner; provided, however, that the General Partner
may delegate to one or more Officers the authority to fix the compensation of
other Officers.
Section 2.03 Expenses. The Partnership shall pay or reimburse the General
Partner and the Tax Matters Partner (as defined in Section 2.05) for all direct,
out-of-pocket expenses incurred by it with respect to its duties under Sections
2.01 and 2.05 to the Partnership, including, without limitation, accounting
expenses, insurance premiums attributable directly to the Partnership, legal
fees, and other direct costs associated with the formation and operation of the
Partnership.
Section 2.04 Exculpations; Indemnities.
(a) Neither the Partners, the Tax Matters Partner, their
affiliates nor any of their respective shareholders, officers, directors,
partners, members, managers, employees or agents (individually a "Covered
Person") shall be liable to the Partnership, any Partner, or any other person
for any act or omission taken or suffered by such Covered Person in good faith
and in the belief that such act or omission was in or was not opposed to the
best interests of the Partnership, provided, that such act or omission was not
fraud, willful misconduct, or a knowing material violation of this Agreement by
such Covered Person. No Covered Person shall be liable to the Partnership, any
Partner, or any other person for any action taken by any other Partner, nor
shall any Covered Person be liable to the Partnership, any other Partner, or any
other person for any action of any employee or agent of the Covered Person,
provided, such action is within the scope of the purposes of the Partnership and
the Covered Person seeking exculpation satisfies the parameters of the preceding
sentence.
(b) To the fullest extent allowed or permitted under any provision
of applicable law, including, without limitation, the Act, the Partnership shall
indemnify, defend, and hold harmless each Partner, its affiliates and their
respective shareholders, officers, directors, partners, members, managers,
employees or agents (individually an "Indemnitee") to the extent of the
Partnership Assets, from and against any losses, expenses, judgments, fines,
settlements, and damages incurred by the Partnership or such Indemnitee arising
out of any claim based upon acts (including, without limitation, negligent acts)
performed or omitted to be performed by the
Partnership or such Indemnitee in connection with the business of the
Partnership, including, without limitation, costs, expenses, and attorneys' fees
expended in the settlement or defense of any such claim. All decisions of the
Partnership concerning any action allowed or permitted under applicable law
concerning the indemnity of any person or entity by the Partnership shall be
made as determined by the General Partner.
Section 2.05 Tax Matters Partner. The General Partner shall act as the
"Tax Matters Partner" for accounting and state (if any) income tax purposes. The
Tax Matters Partner shall mean the Partner (a) designated as the "tax matters
partner" within the meaning of Section 6231(a)(7) of the Internal Revenue Code
of 1986, as amended from time to time (or any corresponding provisions of
succeeding law, collectively the "Code") and (b) whose responsibilities as Tax
Matters Partner include, where appropriate, commencing on behalf of the
Partnership certain judicial proceedings regarding Partnership income tax items
and informing all Partners of any administrative or judicial proceeding
involving income taxes. In exercising its responsibilities as Tax Matters
Partner, the General Partner shall have the final decision making authority with
respect to all income tax matters involving the Partnership. Any direct
out-of-pocket expense incurred by the Tax Matters Partner in carrying out its
responsibilities and duties under this Agreement shall be allocated to and
charged to the Partnership as an expense of the Partnership for which the Tax
Matters Partner shall be reimbursed.
Section 2.06 Certificated Partnership Units. The Partnership hereby
irrevocably elects that all Partnership Units in the Partnership shall be
securities governed by Article 8 of the Uniform Commercial Code. Each
certificate evidencing Partnership Units in the Partnership shall bear the
following legend: "This certificate evidences Partnership Units in Builders
FirstSource - Intellectual Property, L.P. and shall be a security for purposes
of Article 8 of the Uniform Commercial Code." This provision shall not be
amended, and no such purported amendment to this provision shall be effective,
until all outstanding certificates have been surrendered for cancellation.
Certificates for certificated units of the Partnership will be in the form
approved by the General Partner. The Certificates must be signed by the General
Partner. The Partners hereby agree that the Partnership issue to each Partner a
Certificate in the number of Partnership Units set forth on such Partner's
signature page attached hereto.
ARTICLE III
FINANCING
Section 3.01 Capital Contributions.
(a) On the Effective Date, each Partner agrees to contribute (the
"Initial Capital Contributions") to the capital of the Partnership the amount in
cash set forth on such Partner's signature page attached hereto.
(b) The Partners may make additional capital contributions to the
Partnership at such time and in such amounts as they unanimously agree.
Section 3.02 Capital Accounts. For accounting and state (if any) income
tax purposes, the amount of a Partner's capital account ("Capital Account") in
the Partnership shall be determined in accordance with Regulations Section
1.704-1(b)(2)(iv), including by:
(a) crediting to such account (i) all contributions to the
Partnership made by or on behalf of such Partner or his or its predecessor in
interest at their fair market value and (ii) all gains and income of the
Partnership allocated to such Partner or his or its predecessor in interest; and
(b) debiting to such account (i) all distributions from the
Partnership made to or on behalf of such Partner or his or its predecessor in
interest, including the fair market value of any property distributed (less any
liabilities assumed by the Partner or to which any property may be subject) and
(ii) all losses and deductions of the Partnership allocated to such Partner or
his or its predecessor in interest.
Section 3.03 Limited Liability of Limited Partners. Notwithstanding
anything contained in this Agreement to the contrary, the liability of each
Limited Partner for any of the debts, losses, or obligations of the Partnership
shall be limited to the amount of such Limited Partner's capital contributions
pursuant to Section 3.01 hereof. Accordingly, no Limited Partner shall be
obligated to provide additional capital to the Partnership or its creditors by
way of contribution, loan, or otherwise beyond the amount of the capital
contributions required of such Limited Partner pursuant to Section 3.01 hereof.
Except as provided in the Act, no Limited Partner shall have any personal
liability whatsoever, whether to the Partnership or any third party, for the
debts of the Partnership or any of its losses beyond the amount of the Limited
Partner's capital contributions.
Section 3.04 Treatment of Capital Contributions. Except as provided in
this Agreement to the contrary, no Partner shall be entitled to interest on his
or its contributions to the capital of the Partnership nor shall any Partner be
entitled to demand the return of all or any part of such contributions to the
capital of the Partnership.
Section 3.05 Benefits of Agreement. Nothing in this Agreement, and,
without limiting the generality of the foregoing, in this Article III, expressed
or implied, is intended or shall be construed to give to any creditor of the
Partnership or to any creditor of any Partner or any other person or entity
whatsoever, other than the Partners and the Partnership, any legal or equitable
right, remedy, or claim under or in respect of this Agreement or any covenant,
condition, or provision herein contained, and such provisions are and shall be
held to be for the sole and exclusive benefit of the Partners and the
Partnership.
ARTICLE IV
ACCOUNTING, ALLOCATIONS, AND CURRENT DISTRIBUTIONS
Section 4.01 Percentage Interests. For purposes of allocating profits and
losses in
accordance with Section 4.02, and for purposes of distributions under Section
4.06, each Partner shall initially have the Percentage Interest in the
Partnership set forth on such Partner's signature page attached hereto.
Section 4.02 Tax Status, Reports, and Allocations.
(a) Notwithstanding any provision contained in this Agreement to
the contrary, the parties agree that the Partnership, solely for federal income
tax purposes, will not be subject to the provisions of Subchapter K of the Code,
but shall be disregarded as an entity separate from the its Partners.
(b) The General Partner or, at its discretion, an accountant
("Accountant") selected by the General Partner shall prepare or cause to be
prepared all tax returns and statements, if any, that must be filed on behalf of
the Partnership with any taxing authority and shall timely file such returns or
statements.
(c) For accounting and state (if any) income tax purposes, all
income, gains, losses, deductions, and credits of the Partnership for each
Accounting Period shall be allocated among the Partners pro rata in accordance
with their respective Percentage Interests.
(d) If applicable for accounting and state (if any) income tax
purposes, the tax allocations made in accordance with Sections 4.02(e), 4.03(b),
and 4.03(c) (collectively, the "Regulatory Allocations") shall be taken into
account in allocating, for tax purposes, items of income, gain, loss, deduction,
and credit among the Partners so that, to the extent possible, the net amount,
when taken together, of such allocations of income, gain, loss, deduction, and
credit and the Regulatory Allocations made to each Partner shall be equal to the
amount that would have been allocated to each such Partner if the Regulatory
Allocations had not occurred,
(e) If applicable for accounting and state (if any) income tax
purposes, any loss or deductions attributable to any Partnership recourse
liability (as defined in Regulations Section 1.752-1(a)(i)) ("Recourse Debt")
must be specially allocated to any Partner who bears the economic risk of loss
with respect to the Recourse Debt to which such loss or deductions are
attributable. If any allocations are made to any Partner pursuant to the
foregoing sentence, then after any allocations required by Section 4.03 hereof
have been made but prior to allocations pursuant to Section 4.02(b), income
shall be allocated to such Partner until on a cumulative basis an aggregate
amount of income equal to such cumulative deductions and losses has been
allocated to each such Partner.
Section 4.03 Minimum Gain and Income Offsets.
(a) Definitions.
(i) "Partner Minimum Gain" shall be "partner nonrecourse
debt minimum gain," as defined in Regulations Section 1.704-2(i)(2) and
determined in accordance with Regulations Sections 1.704-2(i)(3) and
1.704-2(k).
(ii) "Partner Nonrecourse Debt" has the meaning set forth in
Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
(iii) "Partner Nonrecourse Deduction" has the meaning set
forth in Regulations Section 1.704-2(i).
(iv) "Partnership Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(d) and shall be determined in accordance with
the provisions of Regulations Section 1.704-2(k).
(v) "Regulations" means the temporary and permanent Income
Tax Regulations promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of
succeeding Regulations).
(b) Minimum Gain.
(i) Notwithstanding any other provision of this Agreement to
the contrary, if the Partnership Minimum Gain on the last day of any
fiscal year is less than the Partnership Minimum Gain on the last day of
the immediately preceding fiscal year, then (before any other allocation
of Partnership items for such year under this Agreement, other than as
provided in paragraph (ii) below) there shall be specially allocated to
each Partner items of Partnership income and gain for such year (and, if
necessary, subsequent fiscal years) in an amount equal to such Partner's
share of the net decrease in Partnership Minimum Gain (determined in
accordance with Regulations Section 1.704-2(g)). The items to be so
allocated shall be determined in accordance with Regulations Sections
1.704-2(f)(6) and 1.704-2(j)(2)(i) and (iii). This Section 4.03(b)(i) is
intended to comply with the minimum gain chargeback requirement in
Regulations Section 1.704-2(f) and shall be interpreted consistently
therewith.
(ii) Subsequent to any allocations under Section 4.03(b)(i)
above, other than allocations of gain from the disposition of property
subject to Partner Nonrecourse Debt, if Partner Minimum Gain on the last
day of any fiscal year is less than the Partner Minimum Gain on the last
day of the immediately preceding fiscal year, then, except as provided
herein, each Partner shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent fiscal years)
in an amount equal to that Partner's share, if any, (determined in
accordance with Regulations Section 1.704-2(i)(4)) of the net decrease in
Partner Minimum Gain (such net decrease to be determined in a manner
consistent with the provisions of Regulations Sections 1.704-2(d) and
1.704-2(g)(3)). The items to be so allocated shall be determined in
accordance with the provisions of Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2)(ii) and (iii). Notwithstanding the foregoing, no such
special allocations of income and gain shall be made to the extent that
the net decrease in Partner Minimum Gain described above arises because
the liability ceases to be Partner Nonrecourse Debt due to a conversion,
refinancing, or other change in the debt instrument that causes it to
become partially or wholly a nonrecourse liability within the meaning of
Regulations Section 1.752-1(a)(2). This Section 4.03(b)(ii) is intended to
comply with the chargeback and other provisions of Regulations Section
1.704-2(i) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. Notwithstanding any other provision
of this Agreement, if during any fiscal year any Partner (i) is allocated
pursuant to Code Section 706(d) or Regulations Section 1.751-1(b)(2)(ii) any Net
Loss, loss, items of loss, deductions, or Code Section 705(a)(2)(B)
expenditures, (ii) is distributed any cash or property from the Partnership and
such distributions exceed offsetting increases to such Partner's Capital Account
that are reasonably expected to occur during such year, or (iii) receives any
other adjustment, allocation, or distribution described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5), or (6) and, as a result of such adjustment,
allocation, or distribution, such Partner has a Qualified Income Offset Amount
(as hereinafter defined), then items of income and gain (including gross income)
for such fiscal year or other period (and, if necessary, subsequent fiscal
years) shall (prior to any allocation pursuant to Section 4.02 hereof) be
allocated to such Partner in an amount equal to his Qualified Income Offset
Amount; provided, however, that any allocation of income or gain shall be
required under this sentence only if and to the extent that such Partner would
have a Qualified Income Offset Amount after all other allocations provided for
in this Agreement have been tentatively made as if Sections 4.03(b) and (c) were
not contained herein. As used herein, the term "Qualified Income Offset Amount"
for a Partner means the excess, if any, of (x) the negative balance a Partner
has in its Capital Account following the adjustment, allocation, or distribution
described in the preceding sentence, over (y) the maximum amount that it is
obligated (or is deemed to be obligated) to restore to the Partnership upon
liquidation as determined in accordance with Regulations Sections 1.704-2(f),
(g), and (i). This Section 4.03(c) is intended to satisfy the provisions of
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
(d) All elections, decisions, and other matters concerning the
allocation of profits, gains, and losses among the Partners as well as other
accounting procedures not specifically and expressly provided for by the terms
of this Agreement, shall be determined, in good faith, by the General Partner.
Section 4.04 Accounting.
(a) The fiscal year of the Partnership shall end on the last day
of December of each year.
(b) The books of account of the Partnership shall be kept and
maintained at all times at the principal place of business of the Partnership or
at such other place or places approved by the General Partner. The books of
account shall be maintained according to federal income tax principles using the
method of accounting chosen by the General Partner, consistently applied, and
shall show all items of income and expense.
(c) The General Partner shall cause a balance sheet of the
Partnership dated as of the end of the fiscal year and a related statement of
income or loss for the Partnership for such fiscal year to be prepared by the
Accountant and furnished, at the expense of the Partnership, to each of the
Partners on an annual basis, within ninety (90) days after the close of each
fiscal year.
(d) Each Partner shall have the right at reasonable times and upon
reasonable advance notice during usual business hours to audit, examine, and
make copies of or extracts from the books of account of the Partnership. Such
right may be exercised through any agent or
employee of such Partner designated by him or it or by an independent certified
public accountant designated by such Partner. Each Partner shall bear all
expenses incurred in any examination made on behalf of such Partner.
Section 4.05 Bank Accounts. Funds of the Partnership shall be deposited in
a Partnership account or accounts in the bank or banks as selected by the
General Partner. Withdrawals from bank accounts shall only be made by the
General Partner or such other parties as may be approved by the General Partner.
Section 4.06 Current Distributions to Partners. Except as provided in
Section 6.05 in connection with the termination and liquidation of the
Partnership, the General Partner may distribute cash funds to the Partners at
such times and in such amounts as the General Partner determines, in its sole
discretion, except that such funds shall be distributed by the General Partner
to the Partners pro rata in accordance with their respective Percentage
Interests at the time of the distribution. In determining the amount of funds to
distribute pursuant to this Section 4.06, the General Partner may consider such
factors as the need to allocate funds to any reserves for Partnership
contingencies or any other Partnership purposes that the General Partner deems
necessary or appropriate.
Section 4.07 Changes in Percentage Interests. If applicable for accounting
and state (if any) income tax purposes, if a Partner's Percentage Interest
changes during any fiscal year, the allocations to be made pursuant to this
Agreement shall be made in accordance with Section 706 of the Code, using any
convention permitted by Section 706 of the Code and the Regulations promulgated
thereunder and selected by the General Partner so as to equitably effectuate the
allocations of this Article IV.
ARTICLE V
ASSIGNMENT
Section 5.01 Prohibited and Permitted Transfers. Except as specifically
provided in this Article V, no Limited Partner may sell, transfer, assign,
mortgage, hypothecate, or otherwise encumber or permit or suffer any encumbrance
of all or any part of his or its interest in the Partnership without the
approval of the General Partner and the General Partner may not sell, transfer,
assign, mortgage, hypothecate, or otherwise encumber or permit or suffer any
encumbrance of all or any part of its interest in the Partnership. Any attempt
so to transfer or encumber any such interest shall be null and void, ab initio.
The Partners will be excused from accepting the performance of and rendering
performance to any person other than the Limited Partner hereunder (including
any trustee or assignee of or for such Partner) as to whom such requisite
approval of the General Partner has not been rendered.
Section 5.02 Further Restrictions on Transfer.
(a) In the event of any assignment or transfer permitted under
this Article, the interest so assigned or transferred shall remain subject to
all terms and provisions of this Agreement; the assignee or transferee shall be
deemed, by accepting the interest so assigned or transferred, to have assumed
all the obligations hereunder relating to the interests or rights so assigned or
transferred and shall agree in writing to the foregoing if requested by the
General Partner. Any transferee or assignee of the interest of a Partner shall
be entitled only to receive distributions hereunder until such transferee or
assignee has been admitted as a Substituted Partner (as defined in Section
5.03). Until such transferee or assignee (other than an existing Partner) is
admitted to the Partnership as a Substituted Partner, the Partner transferring
all or any portion of his or its interest to such assignee or transferee shall
remain primarily and directly liable for the performance of all his or its
obligations under this Agreement. After the admission of such assignee or
transferee as a Substituted Partner, such transferor Partner shall only be
primarily and directly liable under this Agreement or otherwise for any
obligations or liabilities accruing prior to the effective time of the admission
of such Substituted Partner, unless such transferor Partner is released in
writing from such obligations or liabilities by the General Partner.
(b) Any Partner making or offering to make a transfer of all or
any part of his or its interest in the Partnership shall indemnify and hold
harmless the Partnership and all other Partners from and against any costs,
damages, claims, suits, or fees suffered or incurred by the Partnership or any
such other Partner arising out of or resulting from any claims by the transferee
of such Partnership interest or any offerees of such Partnership interest in
connection with such transfer or offer.
Section 5.03 Substituted Partner. An assignee or transferee (other than an
existing Partner) of the interest of a Partner may be admitted as a substitute
partner ("Substituted Partner") only with the approval of the General Partner.
Unless the assignee is already a General Partner, any assignee of a Partnership
interest to whose admission such consent is given shall become and shall have
only the rights and duties of a Limited Partner and the assigned Partnership
interest shall thereafter be a Limited Partner's interest. Upon the receipt by
the General Partner of an appropriate supplement to this Agreement pursuant to
which such Substituted Partner agrees to be bound by all the terms and
provisions of this Agreement, the General Partner shall reflect the admission of
a Substituted Partner and the withdrawal of the transferring Partner, if
appropriate, by preparing a supplemental exhibit, dated as of the date of such
admission and withdrawal, and by filing it with the records of the Partnership.
Any Substituted Partner shall, if required by the General Partner, prior to such
admission, also execute any other documents requested by the General Partner,
including, without limitation, an irrevocable power of attorney in form
satisfactory to the General Partner appointing the General Partner as such
person's attorney-in-fact with full power to execute, swear to, acknowledge, and
file all certificates and other instruments necessary to carry out the
provisions of this Agreement, including, without limitation, such undertakings
as the General Partner may require for the payment of all fees and costs
necessary to effect any such transfer and admission. The transferor and
transferee of the transferred interest shall be responsible for the costs
associated with the transfer of the interest, including, without limitation,
reasonable attorney's fees. Upon admission, such Substituted Partner shall be
subject to all provisions of this Agreement in the place and stead of his
assignor as if the Substituted Partner originally was a party to this Agreement.
Section 5.04 Basis Adjustment. If applicable for accounting and state (if
any) income tax purposes, the Tax Matters Partner may cause, in its sole and
absolute discretion, the Partnership to elect pursuant to Section 754 of the
Code and the Regulations thereunder to adjust the basis of the Partnership
Assets as provided by Sections 743 or 734 of the Code and the Regulations
thereunder.
Section 5.05 Other Restricted Transfers. If applicable for accounting and
state (if any) income tax purposes, notwithstanding any other provision herein
to the contrary, unless prior written consent is given by the General Partner,
no transfer of any interest in the Partnership may be made to any person who is
related (within the meaning of Regulations Section 1.752-4(b)) to any lender of
the Partnership whose loan constitutes a nonrecourse liability of the
Partnership.
ARTICLE VI
WITHDRAWAL, DISSOLUTION, TERMINATION, AND LIQUIDATION
Section 6.01 Withdrawal. No Limited Partner shall at any time retire or
withdraw from the Partnership without obtaining the approval of the General
Partner, and the General Partner shall not retire or withdraw from the
Partnership at any time. Retirement or withdrawal by any Partner in
contravention of this Section 6.01 shall subject such Partner to liability for
all damages caused any other Partner (other than a Partner who is, at the time
of such withdrawal, in default under this Agreement) by such retirement or
withdrawal and the consequential dissolution of the Partnership. Any notice of
withdrawal must be in writing.
Section 6.02 Dissolution of the Partnership. The Partnership shall be
dissolved upon the occurrence of any of the following:
(a) The withdrawal, as defined in the Act, of a General Partner,
unless:
(i) the remaining General Partner, if any, elects in writing
within ninety (90) days after such event to continue the business of the
Partnership as the General Partner, or
(ii) there is no remaining General Partner, then within
ninety (90) days after such event, all of the Limited Partners agree to
continue the business of the Partnership and appoint in writing a
successor General Partner, as of the date of the withdrawal of the General
Partner, and such successor General Partner agrees in writing to accept
such appointment; or
(b) The sale or other disposition, not including an exchange, of
substantially all of the assets of the Partnership (except under circumstances
where all or a portion of the purchase price is payable after the closing of the
sale or other disposition); or
(c) December 31, 2050, unless extended by the consent of all
Partners; or
(d) Subject to any obligations of the Partnership, when approved
by the General Partner.
Nothing contained in this Section 6.02 is intended to grant to any Partner the
right to dissolve the Partnership at will (by retirement, resignation,
withdrawal, or otherwise) or to exonerate any Partner from liability to the
Partnership and the remaining Partners if he or it dissolves the Partnership at
will.
Section 6.03 Continuation of Partnership. If the Partnership is continued
as provided in Section 6.02(a)(i) or (ii), then, as of the date of withdrawal,
the General Partner with respect to which an event of withdrawal under Section
6.02 has occurred (or his or its estate or successor in interest) (the
"Withdrawing General Partner") shall have none of the powers of a General
Partner under this Agreement or applicable law and shall have only the rights
and powers of an assignee of a Partner hereunder to share in any Partnership
profits, losses, gains, and distributions in accordance with his or its
Percentage Interest and shall have no other rights or powers of a Partner
hereunder.
Section 6.04 Withdrawal, etc. of a Limited Partner. The withdrawal,
termination (in the case of a Limited Partner that is a trust), dissolution and
termination (in the case of a Limited Partner that is a partnership),
dissolution (in the case of a Limited Partner that is a corporation or limited
liability company), retirement, or adjudication as a bankrupt of a Limited
Partner (the "Withdrawing Limited Partner") shall not dissolve the Partnership,
but the rights of such Withdrawing Limited Partner to share in the profits and
losses of the Partnership and to receive distributions of Partnership funds
shall, upon the happening of such an event, pass to the Withdrawing Limited
Partner's successors in interest subject to this Agreement, and the Partnership
shall continue as a limited partnership.
Section 6.05 Termination and Liquidation of the Partnership.
(a) Upon dissolution of the Partnership unless continued pursuant
to Section 6.03, the Partnership shall be terminated as rapidly as business
circumstances will permit. At the direction of the General Partner, or a Partner
approved by the Limited Partners if the dissolution of the Partnership is caused
by the withdrawal of the General Partner (the General Partner or the other
Partner, as the case may be, being herein called the "Terminating Partner"), a
full accounting of the assets and liabilities of the Partnership shall be taken
and a statement of the Partnership Assets and a statement of each Partner's
Capital Account shall be furnished to all Partners as soon as is reasonably
practicable. The Terminating Partner shall take such action as is necessary so
that the Partnership's business shall be terminated, its liabilities discharged,
and its assets distributed as hereinafter described. The Terminating Partner
may, in his or its sole discretion, either sell all or a part of the Partnership
Assets, distribute all or a part of the Partnership Assets in kind to the
Partners, or sell part and distribute part of the Partnership Assets in kind to
the Partners (i.e., a combination of the two approaches); provided, however,
that the Terminating Partner shall ascertain the fair market value of the
Partnership Assets by appraisal or other reasonable means of all Partnership
Assets remaining unsold and each Partner's Capital Account shall be charged or
credited, as the case may be, as if such Partnership Assets had been sold at
their fair market value
and the income, gains, losses, deductions, and credits realized thereby had been
allocated to the Partners in accordance with Article IV hereof. A reasonable
period of time shall be allowed for the orderly termination of the Partnership
to minimize the normal losses of a liquidation process.
(b) After the payment of all expenses of liquidation and of all
debts and liabilities of the Partnership in such order or priority as provided
by law (including any debts or liabilities to Partners, who shall be treated as
secured or unsecured creditors, as may be the case, to the extent permitted by
law, for sums loaned to the Partnership, if any, as distinguished from capital
contributions) and after all resulting items of Partnership income, gain,
credit, loss, or deduction are credited or debited to the Capital Accounts of
the Partners in accordance with Articles III and IV hereof, all remaining
Partnership Assets shall then be distributed among the Partners in accordance
with their relative positive Capital Account balances. Upon termination, a
Partner may not demand and receive cash in return for such Partner's capital
contributions and no Partner shall have any obligation to restore any deficit
that may then exist in that Partner's Capital Account. Distribution on
termination may be made by the distribution to each Partner of an undivided
interest in any asset of the Partnership that has not been sold at the time of
termination of the Partnership.
Section 6.06 General Partner Not Personally Liable. No General Partner nor
any affiliate of any General Partner shall be personally liable for the return
of the Capital Contributions of any Partner, and such return shall be made
solely from available Partnership Assets, if any, and each Limited Partner
hereby waives any and all claims it may have against any General Partner or any
such affiliate in this regard.
Section 6.07 Provisions Cumulative. All provisions of this Agreement
relating to the dissolution, liquidation, and termination of the Partnership
shall be cumulative to the extent not inconsistent with other provisions herein;
that is, the exercise or use of one of the provisions hereof shall not preclude
the exercise or use of any other provision of this Agreement to the extent not
inconsistent therewith.
ARTICLE VII
GENERAL
Section 7.01 Competing Business. Notwithstanding anything to the contrary
contained in or inferable from this Agreement, the Act, or any other statute or
principle of law, neither the Partners nor any of their shareholders, directors,
officers, employees, partners, agents, family members, or affiliates (each a
"Partner Affiliate") shall be prohibited or restricted in any way from investing
in or conducting, either directly or indirectly, and may invest in and/or
conduct, either directly or indirectly, businesses of any nature whatsoever,
including the ownership and operation of businesses or properties similar to or
in the same geographical area as those held by the Partnership. Any investment
in or conduct of any such businesses by a Partner or any Partner Affiliate shall
not give rise to any claim for an accounting by the other Partners or the
Partnership or any right to claim any interest therein or the profits therefrom.
Section 7.02 LIMITED PARTNER REPRESENTATIONS. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT TO THE CONTRARY, EACH LIMITED PARTNER HEREBY
REPRESENTS AND WARRANTS TO THE PARTNERSHIP, THE GENERAL PARTNER, AND TO EACH
OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, PARTNER, CONTROLLING PERSON, AND AGENT
OF THE GENERAL PARTNER THAT: (a) THE INTEREST IN THE PARTNERSHIP OF SUCH LIMITED
PARTNER IS ACQUIRED FOR INVESTMENT PURPOSES ONLY FOR HIS OR ITS OWN ACCOUNT AND
NOT WITH A VIEW TO OR IN CONNECTION WITH ANY DISTRIBUTION, REOFFER, RESALE, OR
OTHER DISPOSITION NOT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED,
AND THE RULES AND REGULATIONS THEREUNDER (THE "1933 ACT") AND APPLICABLE STATE
SECURITIES LAWS; (b) SUCH LIMITED PARTNER, ALONE OR TOGETHER WITH HIS OR ITS
REPRESENTATIVES, POSSESSES SUCH EXPERTISE, KNOWLEDGE, AND SOPHISTICATION IN
FINANCIAL AND BUSINESS MATTERS GENERALLY, AND IN THE TYPE OF TRANSACTIONS IN
WHICH THE PARTNERSHIP PROPOSES TO ENGAGE IN PARTICULAR, THAT HE OR IT IS CAPABLE
OF EVALUATING THE MERITS AND ECONOMIC RISKS OF ACQUIRING AND HOLDING HIS OR ITS
PARTNERSHIP INTEREST, AND THAT HE OR IT IS ABLE TO BEAR ALL SUCH ECONOMIC RISKS
NOW AND IN THE FUTURE; (c) SUCH LIMITED PARTNER HAS HAD ACCESS TO ALL OF THE
INFORMATION WITH RESPECT TO THE INTEREST ACQUIRED BY HIM OR IT UNDER THIS
AGREEMENT THAT HE OR IT DEEMS NECESSARY TO MAKE A COMPLETE EVALUATION THEREOF
AND HAS HAD THE OPPORTUNITY TO QUESTION THE GENERAL PARTNER CONCERNING SUCH
INTEREST; (d) SUCH LIMITED PARTNER'S DECISION TO ACQUIRE HIS OR ITS INTEREST FOR
INVESTMENT HAS BEEN BASED SOLELY UPON THE EVALUATION MADE BY HIM OR IT; (e) SUCH
LIMITED PARTNER IS AWARE THAT HE OR IT MUST BEAR THE ECONOMIC RISK OF HIS OR ITS
INVESTMENT IN THE PARTNERSHIP FOR AN INDEFINITE PERIOD OF TIME BECAUSE INTERESTS
IN THE PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE 1933 ACT OR UNDER THE
SECURITIES LAWS OF ANY STATES, AND, THEREFORE, CANNOT BE SOLD UNLESS SUCH
INTERESTS ARE SUBSEQUENTLY REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE; (f) SUCH
LIMITED PARTNER IS AWARE THAT ONLY THE PARTNERSHIP CAN TAKE ACTION TO REGISTER
SUCH INTEREST IN THE PARTNERSHIP AND THE PARTNERSHIP IS UNDER NO SUCH OBLIGATION
AND DOES NOT PROPOSE TO ATTEMPT TO DO SO; AND (g) SUCH LIMITED PARTNER IS AWARE
THAT THIS AGREEMENT PROVIDES RESTRICTIONS ON THE ABILITY OF A LIMITED PARTNER TO
SELL, TRANSFER, ASSIGN, MORTGAGE, HYPOTHECATE, OR OTHERWISE ENCUMBER HIS OR ITS
INTEREST IN THE PARTNERSHIP.
Section 7.03 Notice.
(a) All notices, demands, or requests provided for or permitted to
be given pursuant to this Agreement must be in writing.
(b) All notices, demands, and requests to be sent to a Partner,
any Distributee(s) (or their Agent) of the interest of a Partner, or any
Substituted Partner pursuant to this Agreement shall be deemed to have been
properly given or served if: (i) personally delivered, (ii) deposited prepaid
for next day delivery by Federal Express, or other similar overnight courier
services, addressed to such Partner, (iii) deposited in the United States mail,
addressed to such Partner, prepaid and registered or certified with return
receipt requested, or (iv) transmitted via telecopier or other similar device to
the attention of such Partner, all at the address or telecopy number for such
Partner set forth on such Partner's signature page attached hereto (as may be
changed in accordance with subsection (d) below).
(c) All notices, demands, and requests so given shall be deemed
received: (i) when personally delivered, (ii) twenty-four (24) hours after being
deposited for next day delivery with an overnight courier, (iii) forty-eight
(48) hours after being deposited in the United States mail, or (iv) twelve (12)
hours after being telecopied or otherwise transmitted and receipt has been
confirmed.
(d) The Partners, any Substituted Partners, and their respective
Distributee(s)(or their Agent) shall have the right from time to time, and at
any time during the term of this Agreement, to change their respective addresses
and each shall have the right to specify as his or its address any other address
within the United States of America by giving to the other parties at least
thirty (30) days written notice thereof, in the manner prescribed in Section
7.03(b); provided however, that to be effective, any such notice must be
actually received (as evidenced by a return receipt).
(e) All distributions to any Partner shall be made at the address
to which notices are to be sent unless otherwise specified in writing by such
Partner.
Section 7.04 Amendments. Amendments and supplements may be made to or
restatements made of this Agreement or the Certificate of Limited Partnership
(or any exhibits or schedules attached to any of them), from time to time by the
General Partner, without the consent of any of the other Partners, to effect any
amendments which amend this Agreement to admit Substituted Partners, to reflect
any transfers, assignments, admissions, withdrawals, or conversions authorized
by this Agreement, or to effect any non-material amendments to this Agreement or
the Certificate of Limited Partnership. All other amendments to this Agreement
and the Certificate of Limited Partnership shall require the unanimous approval
of the Partners.
Section 7.05 GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTNERS
HEREUNDER SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS.
Section 7.06 Rule of Construction. The general rule of construction for
interpreting a contract, which provides that the provisions of a contract should
be construed against the party preparing the contract, is waived by the parties.
Each party acknowledges that he or it was represented by separate legal counsel
in this matter who participated in the preparation of this Agreement or he or it
had the opportunity to retain counsel to participate in the preparation of this
Agreement but chose not to do so.
Section 7.07 Entire Agreement. This Agreement, including all exhibits to
this Agreement and, if any, exhibits to such exhibits, contains the entire
agreement among the parties relative to the matters contained in this Agreement.
Section 7.08 Waiver. No consent or waiver, express or implied, by any
Partner to or for any breach or default by any other Partner in the performance
by such other Partner of his or its obligations under this Agreement shall be
deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other Partner of the same or any other
obligations of such other Partner under this Agreement. Failure on the part of
any Partner to complain of any act or failure to act of any of the other
Partners or to declare any of the other Partners in default, regardless of how
long such failure continues, shall not constitute a waiver by such Partner of
his or its rights hereunder.
Section 7.09 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby, and the intent of this Agreement shall be enforced to the greatest
extent permitted by law.
Section 7.10 Binding Agreement. Subject to the restrictions on transfers
and encumbrances set forth in this Agreement, this Agreement shall inure to the
benefit of and be binding upon the undersigned Partners and their respective
legal representatives, successors, and assigns. Whenever, in this Agreement, a
reference to any party or Partner is made, such reference shall be deemed to
include a reference to the legal representatives, successors, and assigns of
such party or Partner.
Section 7.11 Tense and Gender. Unless the context clearly indicates
otherwise, the singular shall include the plural and vice versa. Whenever the
masculine, feminine, or neuter gender is used inappropriately in this Agreement,
this Agreement shall be read as if the appropriate gender was used.
Section 7.12 Captions. Captions are included solely for convenience of
reference and if there is any conflict between captions and the text of this
Agreement, the text shall control.
Section 7.13 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and all
of which when taken together shall constitute a single counterpart instrument.
Executed signature pages to any counterpart instrument may be detached and
affixed to a single counterpart, which single counterpart with multiple executed
signature pages affixed thereto constitutes the original counterpart instrument.
All of these counterpart pages shall be read as though one and they shall have
the same force and effect as if all of the parties had executed a single
signature page.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The undersigned has executed and delivered this Limited
Partnership Agreement of Builders FirstSource - Intellectual Property, L.P., to
be effective as of the Effective Date.
GENERAL PARTNER
BFS IP, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx
Senior Vice President
Initial Capital Contribution: $100.00
Issued Partnership Units: One Hundred (100)
Percentage Interest: 1.00%
The undersigned has executed and delivered this Limited
Partnership Agreement of Builders FirstSource - Intellectual Property, L.P., to
be effective as of the Effective Date.
LIMITED PARTNER
BUILDERS FIRSTSOURCE -
TEXAS GROUP, L.P.,
a Texas limited partnership
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx
Senior Vice President
Initial Capital Contribution: $9,900.00
Issued Partnership Units: Nine Thousand, Nine Hundred (9,900)
Percentage Interest: 99.00%
